2000 PLP 2698 (YLR)

(iv) 1987 CLC 972. (v) 1991 MLD 692 (vi) 1996 CLC (vii) 1996 MLD 692. (viii) An unreported judgment of Supreme Court of AJK titled Chief Administrator Auqaf Department v. Sain Ghulam Ahmed Nisar and others Civil P.LA. No. 134 of 1998, dated 18‑9‑1998. We have heard the learned counsel for the parties at some length and have also gone through the impugned judgment and the case‑law cited. The learned counsel for the appellant sought to argue that due to unavoidable circumstances he could not tile the appeal within the prescribed period of limitation, therefore, the delay be condoned. The impugned judgment was recorded on 24‑1‑1998 whereas the appellant applied for the copy of the aforesaid judgment on 28‑1‑1998 which was distributed on 3‑2‑1998, thus, it appears that appellant had obtained the copy of impugned judgment on 3‑2‑1998 but he did not tile the appeal till 25‑3‑1998 for 50 days after obtaining the copy of the impugned judgment. It is well -settled principle of law that time requisite for obtaining a copy is to be deducted from the period of limitation prescribed by law. Thus after deducting the requisite period the limitation shall start from 3‑2‑1998 thus, it was incumbent upon the appellant to tile the appeal within 30 days as postulated by sections 3 of AJK Family Courts (Amendment) Act, 1998 which reads as under:‑‑ Substitution of section 14, Act XI of 1994.‑‑‑In the said Act, for section 14, the following shall be substituted, namely:‑‑

14. Appeals.‑‑‑(1) Any parry aggrieved by a decision or a decree passed by a Family Court under this Act may, within thirty days of the date of such decision or decree, prefer an appeal to the Shariat Court. (2) -- -- -- (3) -- -- -- (4) -- -- -- (5) -- -- -- The perusal of the above section reveals that the appellant was bound to prefer an appeal before this Court within 30 days of the date of impugned judgment but even though the appeal was not preferred till 3rd of March, 1998 and was later on presented on 25‑3‑1998 after a delay of 22 days. According to the learned counsel for the appellant, the unavoidable circumstances for delay in tiling appeal was the death of his son which took place on 16‑2‑1998 and later on his father died on 23‑2‑1998 but no sufficient and cogent reason has been brought forward, on the record that after obtaining the copy of the impugned judgment on 3‑2‑1998 as to why the appeal was not lodged from 3‑2‑1998 to 16‑2‑1998 for 14 days before sad demise of the son of the learned counsel for the appellant. The above mentioned 14 days from 3‑2‑1998 to 16‑2‑1998 remains unexplained by the appellant. It is settled law that delay of each and every day has to be explained satisfactorily by the party wishing to take advantage of condonation and such party must satisfy the Court that it had not been negligent and had been prosecuting his case with due diligence and care. In this respect an unreported judgment of Supreme Court of AJK titled Chief Administrator Auqaf Department v. Sain Ghulam Ahmed Nisar and others, dated 18‑9‑1998 can be referred to wherein the petition for leave to appeal as dismissed on the delay of one day. The relevant portion of the judgment para. 6, sub -para. (i) at page 6 reads as under:‑‑ "Since the petition for leave to appeal is barred by limitation of one day for which no sufficient explanation has been furnished nor any application for the condonation of delay has been tiled, therefore, the petition on this sole ground is liable to be dismissed." In case reported as Mehboob v. Muzaffar (1992 SCR 338), the delay of one day was not excused because the same was not, explained by the petitioner. No doubt that an application for the condonation of delay has been presented before this Court but it does not furnish any sufficient explanation for the condonation of delay. It is settled rule of law that limitation cannot be extended on surmises and conjectures but the question of excusing delay has to be approached from the point of view of applicant's conduct. The Court has no jurisdiction where the party claiming indulgence has been grossly negligent and inactive. Delay of each and every day has to be explained satisfactorily before taking advantage of the relevant law but in the present case the details explaining the each day delay have not been incorporated in application for condonation of delay and the appellant having knowledge of limitation and after obtaining the copy of impugned judgment without any sufficient cause slept over the matter and allowed the period of limitation to run out. In such state of affairs the appellant is not entitled to any relief and delay cannot be condoned under the circumstances of the case. The appeal is barred by time which is liable to be dismissed on this sole ground. There is another aspect of the case that creates more difficulty for the appellant. The present appeal seems to be written by the learned counsel for the appellant on 4‑2‑1998, a day after obtaining the copy of the impugned judgment. The respondent has also presented an application for dismissal of the appeal on the ground that it is barred by limitation wherein it is contended in para. 4 of the application that the respondent had presented an application for maintenance of her children against appellant which was allowed in their favour on 10‑1‑1998 by Family Court, Kotli. The copy of the aforesaid judgment was also obtained by appellant on 3‑2‑1998. An appeal against the aforesaid order, dated 10‑1‑1998 was also drafted by the learned counsel for the appellant on 4‑2‑1998 with the present appeal which was filed on 7‑2‑1998 but the present appeal was withheld and not preferred till 25 3‑1998 by the same appellant and the same learned counsel for the appellant. In support of his contentions an affidavit has also been filed by the respondent. This conduct of the appellant also shows that he was not diligent throughout and did not bother to run out the period of limitation against him. We may observe here that even after engaging a counsel it was the duty of the appellant to keep himself fully informed of the proceedings and he was not relieved of his obligation to do so merely because he had engaged a counsel to appear on his behalf. If the learned counsel for the appellant was busy in ailment of his son, the appellant did not adduce any cogent reason as to why the appellant himself did not ensure that the appeal was tiled within the prescribed period of limitation. In this respect a case reported as State Bank of Pakistan v. Khalid Rashid, Chairman, Miraj Sons Ltd. (1991 MLD 692) can be referred to where ,the ailment of the appellant's counsel was not considered as a sufficient ground for condonation of delay. The next question which requires consideration is as to whether in the instant case in the light of the promulgation of the Azad Jammu and Kashmir Family Courts Act, 1993, a special Act and by providing a special period for appeal in the said Act, section 5 of the Limitation Act stands excluded by virtue of section 29(2) of the Limitation Act, which permits the application of only sections 4, 9 to 18 and

22. In this respect the contention of the learned counsel for the respondent appears to be well founded and requires serious consideration. On plain reading of section 29 (2) of the Limitation Act, it would appear that it lays down that where any special or local law prescribes a period of limitation different from the period provided by the First Schedule, the provision of Limitation Act will only apply to the extent expressly specified in this section. It is quite evident that in such case section 5 of the Limitation Act would not apply and only sections 4, 9 to 18 and 22 would apply in so far and to the extent to which they are not expressly excluded by special or local law. Therefore, in order to attract this provision of law it must be considered as to whether special law has prescribed a different period of limitation for an appeal from that prescribed under the First Schedule and whether under it, the application of sections 4, 9 to 18 and 22 has in any way been curtailed for computing period of limitation. It is an admitted fact that no period of limitation for filing an appeal against a judgment and decree passed by Family Court has been provided in Limitation, Act, 1908. As stated earlier under Azad Jammu, and Kashmir Family Courts (Amendment) Act, 1998 a period of 30 days has been provided for tiling such an appeal before this Court against judgment of Family Court. Thus it would appear that the period of limitation provided under the aforesaid Act is different from the period prescribed by the, First Schedule of Limitation Act, 1908. Our conclusion, therefore, is that in the instant case section 5 of the Limitation Act would not apply and only sections 4, 9 to 18 and 22 would apply in so far and to the extent to which they are not expressly excluded by special law or local law. In this respect a reference can be made to a case reported as Allah Ditta v. Farooq Ahmed and 3 others (PLD 1979 Lahore 917), where the time allowed for appeal by subsection (4) of section 15 of West Pakistan Urban Rent Restriction Ordinance; 1959 is 30 days whereas under Article 156 of the Limitation Act, it is 90 days. Thus, it was held that section 5 stands excluded by virtue, of section 29(2) of the Limitation Act. In case reported as Muhammad Hanif v. Collector/Deputy Commissioner Kasur and 2 others (PLD 1982 Lahore 239) it was observed that in a case of Muslir Family Laws Ordinance, being a special, enactment not introducing any provision making section 5 of the Limitation A applicable to it, section 5 thereof would not apply to a special enactment and its application has been excluded by clause (b) of subsection (2) of section 29 of Limitatic Act. In case reported as Ali Muhammad; and another v. Fazal Hussain and others (1983 SCMR 1239), it was held that time allowed for an appeal under section 15 (4) of West Pakistan Urban Rent Restriction Ordinance, is 30 days, whereas under Articles 156 of the Limitation Act it is 90 days. The time allowed for tiling the appeal by the special law being different from that given in the Limitation Act, section 5 stands excluded by virtue of section 29 (2) of Limitation Act. In a case reported as Mussarat v. Muhammad Bashir (1996 MLD 692), it was observed that the period of limitation against the judgment of the Family Court does not find any place in the Limitation Act, but the period was provided 30 days in the Family Courts Act. Therefore, the period prescribed for an appeal against the judgment of the Family Court is different from the First Schedule of the Limitation Act. Thus, section 29 of the Limitation Act will be applicable to the appeals under Family Courts Act. In case reported as Magic Chef Inc and others v. Al‑Norr Industries Ltd., 1987 CLC 972 also supports the view stated above. So far as the case‑law referred to by the learned counsel for the appellant is concerned, in an unreported case titled Mst. Shaheen Akhter v. Muhammad Alam and Muhammad Alam v. Shaheen Akhtar (S.C. AJK), dated 28‑6‑1999 it was observed that time requisite for obtaining a copy is only to be deducted from the period of limitation prescribed by law and nothing more but in the instant case the appellant did not file the appeal after obtaining the copy of the impugned judgment. Therefore, the above‑referred case does not render any help to the appellant. We do not find any substance in this argument of the learned counsel for the appellant that in the absence of a declaration of willingness by the respondent at the time of the presentation of the application, as required by section 10(3) of the Guardians and Wards Act makes the impugned order, a void order. It is admitted principle of law that a void order is that order which is passed without affording a chance of hearing to the other party or passed in utter lack of jurisdiction. But in the instant case the appellant has vigorously contested the application of the respondent and also tiled a cross application for appointment as Guardian. He was assisted by a counsel. Furthermore the Family Court has got ample jurisdiction to adjudicate upon the matter presented before it. The learned counsel for the appellant has cited two authorities to substantiate his contention that impugned order is void, therefore, question of limitation does not arise against a void order. Suffice to note that in first case reported as Syed Nazir Hussain Shah v. Settlement Commissioner, Lyallpur, (PLD 1974 Lahore 434), the petitioner was never issued any notice of hearing and he was condemned unheard. In second case reported as Jamal Bhai and 2 others v. Administrator Evacuee Trust Property and 6 others (1985 CLC 1411) it was observed that an order passed in utter lack of jurisdiction or in excess of jurisdiction was held void order, but if the authority passing an order possesses necessary jurisdiction and in exercise of such jurisdiction passes a wrong order it could not be regarded as a void order but in the instant case the appellant could not establish as to how the Family Court acted beyond jurisdiction and passed a void order without giving him any opportunity of hearing. On this account the impugned order cannot be regarded a void‑order. It, therefore, follows that Azad Jammu and Kashmir Family Courts Act, 1993 is a special enactment and it does not embody any provision making section 5 of the Limitation Act, applicable to it. In this view of the matter the application of section 5 of the Limitation Act has been excluded by clause (b) of subsection (2) of section 29 of Limitation Act, therefore, section 5 of the Limitation Act is not available to the appellant for seeking condonation of delay in the present appeal. As far as the other arguments of the learned counsel for the parties about merits of the case are concerned, I do not want to discuss the same in details because the appeal is hopelessly time‑barred and liable to be set aside on this sole ground. For the reasons listed above the appeal is time‑barred which is hereby dismissed. Q.M.A./M.A.K./19/Sh.C(AJ&K) Appeal dismissed,